Background

Readers with long memories may recall that when Felix Ngole was a second-year Master’s student on a social work course at Sheffield University, he was excluded from the course by the Faculty of Social Sciences Fitness to Practise Committee after comments he had posted on Facebook about his personal opposition to same-sex marriage. He sought judicial review of that decision, and though the Administrative Court found for the University, in R (Ngole) v The University of Sheffield [2019] EWCA Civ 1127 the Court of Appeal allowed his appeal and remitted his case for reconsideration. We noted the appeal here.

Mr Ngole duly qualified as a social worker in 2021, but in 2024 he was before an Employment Tribunal complaining of direct discrimination by health and wellbeing charity Touchstone Leeds.

The facts

In Mr F Ngole v Touchstone Leeds [2024] UKET 1805942/2022, the facts were as follows.

Mr Ngole applied for a post with Touchstone as a discharge mental health support worker at Pinderfields Hospital in Wakefield. He was offered the post on 19 May 2022 (subject to a clear DBS certificate and satisfactory references). Touchstone then Googled him and withdrew the conditional job offer on 10 June 2022, without any discussion with Mr Ngole. The Google search had picked up news articles about his removal from the Sheffield course after making negative comments about the LGBT+ community and same-sex marriage on Facebook, including references to the Bible describing homosexuality as a sin [63-67] – but it had not picked up the Court of Appeal’s judgment in 2019 or any news coverage about it [68]. Touchstone offered him a second interview to give him an opportunity to reassure the organisation that his beliefs would not affect the charity’s work, with the possibility of reissuing his job offer if the interview went well. It duly took place on 11 July 2022, but Touchstone did not reinstate the conditional offer [2-4]. In a statement to the ET, Touchstone’s CEO, Mrs Hart, said that

“The contents of those articles [on BBC News and in The Guardian] revealed to me that the claimant held views that were not seemingly in alignment with [our] vision, values and ethos” [69] and “In particular, the claimant outwardly expressing that ‘the Bible and God identify homosexuality as a sin’ during his time as a university student and the claimant being removed from the university course” [71].

Before the ET, Mr Ngole claimed religion or belief discrimination or harassment following what had been uncovered about his religious views in the Google search, particularly on homosexuality and same-sex marriage [4].

The judgment

In an extremely long and complex judgment (on, it should be said, an extremely complex set of facts). As to the direct discrimination claim, the ET stated that

“The real reason that Mr Ngole was treated as he was is because of his expression of views rooted in his religious beliefs which impacted on Touchstone’s concerns for the safeguarding of their service users. The expression of his beliefs rooted in his religion was a material reason for the decision taken by Touchstone to withdraw the conditional job offer on 10 June 2022. The direct discrimination claim must therefore succeed” [346].

However, the ET stated that “The real issue upon this matter is that of justification”:

“It is difficult, frankly, to see how [Touchstone’s] aims could have been achieved without the application of the [provision criterion or practice], given the need to be supportive of those from the LGBTQI+ community who were vulnerable because of acute mental health needs” [355].

“Further, it is difficult to see how something less discriminatory could have been done instead. The acute sensitivity of the service users was plainly paramount. The respondent was unable to obtain the necessary assurances from the claimant that his faith would not interfere with his role in promoting LGBTQI+ lifestyles” [356].

The ET concluded:

• that the claim of direct discrimination in respect of the decision to withdraw the conditional job offer on 10 June 2022 succeeded: however, the other items of the direct discrimination claim failed [347];
• that the indirect discrimination and harassment claims failed [360]

The matter was to be listed for a remedy hearing [361].

There is a helpful analysis in Personnel Today, here. On 1 July, Mr Ngole announced that he would appeal.